1996 Supreme(SC) 1453

1996(7) Supreme 77
Supreme Court of India
A.M. Ahmadi, C.J.I. & S.B. Majmudar, J.
Keshub Mahindra etc. etc. —Appellant
versus
State of Madhya Pradesh —Respondent
Criminal Appeal No. 1672 of 1996
(Arising out of SLP (Crl.) No. 3900 of 1995)
With
Criminal Appeal No. 1673 of 1996
(Arising out of SLP (Crl.) No. 3901 of 1995
And
Criminal Appeal No. 1675 of 1996
(Arising out of SLP (Crl.) No. 3953 of 1995)
And
Criminal Appeal No. 1674 of 1996
(Arising out of SLP (Crl.) No. 3932 of 1995)
Decided on 13-9-1996
Counsel for the Parties :
For the Appellant in Crl. A.No. 1672/96 : Ashok H. Desai, and K.K. Desai, Sr. Advocate, A.K. Desai, K.J. John and Palkar, Advocates.
For the Appellant in Crl. A. Nos. 1673, 1675 and 1674/96 : Prasad Dakephalkar, P.H. Parekh and Ms. Bina Madhavan, Advocates.
For the Respondent : Altap Ahmad, Additional Solicitor General, P. Parameshwar, S.A. Matto, Advocates.

Important Points
1. When the material produced by the prosecution at the stage of framing of charges did not even prima facie connect the ­accused with any act done with the knowledge that by that act itself deaths of human beings would be caused the accused could not be even charged for culpable homicide and consequently there would be no question of attracting Section 304 Part II Indian Penal Code against the concerned accused on such material.
2. In ‘Bhopal Gas Tragedy’ case, charges framed against the accused u/ss 304 Part II, 324, 326 and 429 IPC with or without the aid of Section 35 are quashed and set aside.
3. In ‘Bhopal Gas Tragedy’ case, when the material led by the prosecu­tion at the stage of framing of charges prima facie shows that there were not only structural defects but even operational defects in the working of the plant on that fateful night which resulted in leakage of toxic gas thereby causing grim tragedy, a prima facie case is made out for framing charges u/s 304-A Indian Penal Code, against the concerned accused.

Headnote:(i) Criminal Procedure Code, 1973—Sections 227, 228 and 482—Order framing charges—Challenged —Jurisdiction available to Court for decid­ing whether charges framed are legally sustainable—Scope of—Limited jurisdiction regarding permissible scrutiny of prosecution case as revealed from chargesheet and material supporting the same for framing charges. (Para 9)

       (ii) Bhopal Gas Tragedy Case—Indian Penal Code, 1860—Section 304 Part II—Culpable homicide not amounting to murder—Prosecution for offence under—Toxic gas leakage due to basic defects in designing of plant—3828 lives being lost—Permanent injuries caused to 18922 human beings—Temporary disablement suffered by 7172 human beings—Death of animals—Mere act of storing such dangerous and volatile material by accused in tank—Not to prima facie suggest that accused thereby had knowledge that they were likely to cause death of human beings—It could not be held even prima facie that it made accused liable to face charge u/s 304 Part II—Prima facie case made out for framing charges u/s 304-A against accused Nos. 5, 6, 7, 8 & 9 who were in actual charge of running of plant—Accused 2, 3, 4, & 12 charged u/s 304-A r/ws 35 IPC.

       Held : A look at Section 304 Part II shows that the concerned accused can be charged under that provision for an offence of culpable homicide not amounting to murder and when being so charged if it is alleged that the act of the concerned accused is done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death the charged offences would fall under Section 304 Part II. However before any charge under Section 304 Part II can be framed, the material on record must at least prima facie show that the ac­cused is guilty of culpable homicide and the act allegedly com­mitted by him must amount to culpable homicide. However, if the material relied upon for framing such a charge against the concerned accused falls short of even prima facie indicating that the accused appeared to be guilty of an offence of culpable homicide Section 304 Part I or Part II would get out of the picture. Consequently the material relied upon by the prosecution for framing a charge under Section 304 Part II must at least prima facie indicate that the accused had done an act which had caused death with at least such a knowledge that he was by such act likely to cause death. The entire material which the prosecution relied upon before the Trial Court for framing the charge and to which we have made a detailed reference earli­er, in our view, cannot support such a charge unless it indicates prima facie that on that fateful night when the plant was run at Bhopal it was run by the concerned accused with the knowledge that such running of the plant was likely to cause deaths of human beings. It cannot be disputed that mere act of running a plant as per the permission granted by the authorities would not be a criminal act. Even assuming that it was a defective plant and it was dealing with a very toxic and hazardous substance like MIC the mere act of storing such a material by the accused in tank No. 610 could not even prima facie suggest that the con­cerned accused thereby had knowledge that they were likely to cause death of human beings. In fairness to prosecution it was not suggested and could not be suggested that the accused had an intention to kill any human being while operating the plant. Similarly on the aforesaid material placed on record it could not be even prima facie suggested by the prosecution that any of the accused had a knowledge that by operating the plant on that fateful night whereat such dangerous and highly volatile sub­stance like MIC was stored they had the knowledge that by this very act itself they were likely to cause death of any human being. Consequently in our view taking entire material as afore­said on its face value and assuming it to represent correct factual position in connection with the operation of the plant at Bhopal on that fateful night it could not be said that the said material even prima facie called for framing of a charge against the concerned accused under Section 304 Part II, IPC on the spacious plea that the said act of the accused amounted to culpa­ble homicide only because the operation of the plant on that night ultimately resulted in deaths of number of human beings and cattle. (Para 15)

       Further held : Section 304-A on this very finding can strainghtaway get attracted at least prima facie. It cannot be disputed that because of the operation of the defective plant at Bhopal on that fateful night a highly dangerous and volatile substance like MIC got converted into poisonous gas which snuffed off the lives of thousands of human beings and maimed other thousands and killed number of animals and that all happened, as seen at least prima facie the material led by the prosecution on record, because of rash and negligent act on the part of the accused who were in-charge of the plant at Bhopal. Even though, therefore, these accused cannot be charged for offences under Section 304 Part II the material led against them by the prosecu­tion at least prima facie showed that the accused were guilty of rash or negligent acts not amounting to culpable homicide and by that act accused death of large number of persons. (Para 17)

       It cannot be said that the said material even prima facie did not point out the culpability of the concerned accused in running a defective plant having number of operational defects and in being prima facie guilty of illegal omissions to take safety measures in running such a limping plant no that fateful night which resulted into this colossal tragedy. The aforesaid conclusion of ours, therefore, would make out a prima facie case against accused Nos. 5, 6, 7, 8 and 9 who were in actual charge of running of the Bhopal plant and would require them to face the trial for charge under Section 304-A of the IPC. (Para 17)

       So far as the remaining accused Nos. 2, 3, 4 and 12 are concerned the material produced on record clearly indicates at least prima facie that they being at the helm of affairs have to face this charge for the alleged negligence and rashness of their subordinates who actually operated the plant on that fateful night at Bhopal and for that purpose Section 35 of the IPC would also prima facie get attracted against them. A mere look at that Section shows that if the act alleged against these accused becomes criminal on account of their sharing common knowledge about the defective running of plant at Bhopal by the remaining accused who represented them on spot and who had to carry out their directions from them and who were otherwise required to supervise their activity, Section 35 of the IPC could at least prima facie be invoked against accused 2, 3, 4 and 12 to be read with Section 304-A, IPC. (Para 18)

       (iii) Indian Penal Code, 1860—Sections 324 and 326—Voluntarily causing hurt—Leakage of toxic gas—Death of human beings—Disabili­ties caused to many—Act of running plant whereat such toxic and volatile substance was stored—Whether ­prima facie be said to have done with knowledge to cause hurt or grievous hurt ?—(No)—No charge u/ss 324 and 326 could be framed. (Para 16)

       (iv) Indian Penal Code, 1860—Section­ 429—Mischief by killing or maining cattle, etc.—Prosecution to show material against accused indicating commission of mischief.

       Held : Before the said Section is pressed in service the material relied upon by the prosecution must indicate even prima facie that the concerned accused by running the plant at Bhopal on that fateful night had knowledge that by running such plant they were likely to cause wrongful loss of damage to the public or to any person. It is difficult to appreciate how said provision can be pressed in service on the basis of the material ­referred to hereinabove which does not whisper or even prima facie indicate how by running such a plant wherein highly dangerous and volatile sub­stance like MIC was stored in tank No. 610 the accused had the knowledge that by that act alone they were likely to destroy anybody’s property or cause wrongful loss or damage to any per­son. Once the applicability of Section 425, IPC dealing with ‘mischief’ is ruled out on such material there would remain no occasion to invoke Section 429 which for its applicability requires the prosecution to show in the first instance any materi­al against the concerned accused indicating the commission of mischief by the accused. (Para 16)

       Result : Appeals partially allowed. Charges framed against accused u/ss 304 Part II, 324, 326 and 429 IPC are quashed and set aside. Trial Court shall frame charges­ for offence u/s 304-A IPC. Trial Court to consider whether charges should be framed u/ss 336, 337 and 338 IPC.